J3

[COURT OF APPEAL]

REGINA v. COGAN

REGINA v. LEAK

1975 May 23;

June 9

Lawton and James L.JJ. and Bristow J.

Crime — Aiding and abetting — Rape — Husband procuring friend to rape wife — Friend innocent of
offence because of belief in wife's consent to sexual intercourse — Whether husband committing
offence

The defendant L took the defendant C back to his home and told his wife that C wanted to have sexual
intercourse with her and that he was going to see that she did. L's wife was not willing to have
intercourse with C but she was frightened of L who made her go to the bedroom where C had sexual
intercourse with her. The wife was sobbing throughout the intercourse. She did not struggle with C but
she did try to turn away from him. C was charged with rape and L was charged with “being aider and
abettor to” that rape: the particulars of the offence being that he “at the same time and place did abet
counsel and procure [C] to commit the said offence.” At the trial, C's defence was that he believed that
L's wife had consented to the intercourse. In a written statement he made to the police, L, who did not
give evidence at the trial, confessed that he had procured C to have sexual intercourse with his wife,
that she had not consented to that intercourse and that he had intended her to be raped by C. The jury
found both defendants guilty and returned a special verdict that C had believed the wife was consenting
but that he had no reasonable grounds for such belief. Both defendants appealed against conviction and
C's appeal was allowed.

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On the question whether L's conviction for aiding and abetting was vitiated as a result of C's appeal
being allowed: —

Held , dismissing the appeal, that, although C was innocent of rape, the wife had in fact been raped and
that criminal offence had been procured by L who had intended that C should have sexual intercourse
with his wife without her consent; that the particulars of offence accurately stated that L had procured
the offence but, since L knew what offence was alleged against him and had admitted it, the appeal was
not to be decided on technicalities of pleading but on the ground that it was contrary to justice and
common sense to quash L's conviction on the ground that C was innocent of the offence of rape.

The following eases are referred to in the judgment of the court:

Reg. v. Humphreys and Turner [1965] 3 All E.R. 689.

Reg. v. Morgan [1976] A.C. 182; [1975] 2 W.L.R. 913; [1975] 1 All E.R. 8; [1975] 2 All E.R. 347, C.A. and
H.L.(E.).

Reg. v. Quick [1973] Q.B. 910; [1973] 3 W.L.R. 26; [1973] 3 All E.R. 347, C.A.

Walters v. Lunt [1951] 2 All E.R. 645. D.C.

The following additional cases were cited in argument:

Castlehaven's (Earl of) Case (1631) 3 State Tr. 401.

Morris v. Tolman [1923] 1 K.B. 166, D.C.

R. v. D. [1969] 2 S.A.L.R. 591.

Reg. v. Hughes (1860) Bell C.C. 242.

Reg. v. Ram (1893) 17 Cox C.C. 609.

Surujpaul v. The Queen [1958] 1 W.L.R. 1050; [1958] 3 All E.R. 300. P.C.

APPEAL against conviction.

The defendants, John Rodney Cogan and Michael Edward Leak, were tried on an indictment at Teesside
Crown Court (Mocatta J. and a jury) on October 3 and between October 23–28, 1974. The defendant
Cogan was charged with a count alleging rape, the complainant being the defendant Leak's wife. Leak
was charged with, inter alia, a count charging him with aiding and abetting Cogan's offence of rape, the
particulars of the offence alleged against Leak being that he did “aid abet counsel and procure [Cogan]
to commit” the rape. They were convicted. Cogan was sentenced to two years' imprisonment. Leak was
sentenced to seven years' imprisonment, the sentence being concurrent to sentences passed on him for
other offences.

Cogan appealed against his conviction on the ground, inter alia, that the judge directed the jury, in
accordance with the decision of the Court of Appeal in Reg. v. Morgan [1975] 2 W.L.R. 913, 916 et seq.,
that a belief that the woman consented was only a defence if the belief was based on reasonable
grounds and took a special verdict from the jury which was that they found Cogan guilty of rape because
he believed the complainant to be consenting to intercourse but without any reasonable grounds for
such belief. The Court of Appeal applied the decision of the House of Lords in Reg. v. Morgan [1975] 2
W.L.R. 913, 923 et seq. and on May 23, 1975, allowed Cogan's appeal and quashed his conviction.

The defendant Leak appealed, inter alia, against his conviction of being

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an aider and abettor to rape on the ground, inter alia, that, as Cogan's conviction for rape had been
quashed, his conviction for aiding and abetting was vitiated. The Court of Appeal dismissed Leak's appeal
but reserved its judgment. The case is only reported on the decision in Leak's appeal.

The facts are stated in the judgment of the court.

J. D. Hitchen for the defendant Cogan.

Donald Herrod Q.C. and Simon Lawler for the defendant Leak. Even if a principal in the first degree is
acquitted it is still possible for a principal in the second degree to be convicted. See Morris v. Tolman
[1923] 1 K.B. 166, in particular Lord Hewart C.J. at p. 169 and Avory J. at p. 171. A principal in the second
degree has been convicted in several reported cases where the principal in the first degree has been
acquitted. See Reg. v. Hughes (1860) Bell C.C. 242 where the principal in the first degree and the
principal in the second degree were not tried together. In Reg. v. Humphreys and Turner [1965] 3 All E.R.
689 evidence which was admissible against the principal in the second degree was not admissible
against the principal in the first degree. As against that, there is authority for the proposition that the
principal in the second degree cannot be convicted in a case where he is tried at the same time as the
principal in the first degree and the evidence is the same against both: see Surujpaul v. The Queen
[1958] 1 W.L.R. 1050. It is further well-settled that a person may be a principal in the second degree to
an offence which he is incapable of committing as a principal in the first degree: see Russell on Crime,
12th ed. (1964), vol. 1, p. 133; Glanville Williams, Criminal Law, 2nd ed. (1961), p. 386 and Smith and
Hogan, Criminal Law, 3rd ed. (1973), p. 108.

In Reg. v. Ram (1893) 17 Cox C.C. 609 a woman was convicted of being a principal in the second degree
to an offence of rape. There is authority for a husband being convicted as a principal in the second
degree to the offence of rape on his wife where the principal in the first degree was convicted: see Hale,
Pleas of the Crown (1778), vol. 1, p. 629 and Earl of Castlehaven's Case (1631) 3 State Tr. 401. 415.

Applying those principles to the facts here Leak could only be guilty of the offence of aiding and abetting
Cogan's rape of his, Leak's, wife if: (i) it could be said that the offence had actually taken place once
Cogan had been acquitted (of rape) and (ii) if it were possible for a principal in the second degree to be
convicted where he was tried at the same time as the principal in the first degree and the evidence
against both men had been the same. One view would be to say that Leak had the necessary mens rea,
which was never disputed, and that the actus reus of rape was complete as soon as sexual intercourse
took place so that Leak could not avail himself of the principal in the first degree defence. An alternative
view was that because the principal in the first degree had been acquitted then no offence had been
committed and in those circumstances Leak could not be guilty. Support for the first view is derived
from the Rhodesian case of R. v. D. [1969] 2 S.A.L.R. 591 which is referred to in Smith and Hogan,
Criminal Law, 3rd ed., p. 106. There is far more support for the second point of view: see Russell on
Crime, 12th ed., p. 128; Glanville Williams, Criminal Law, 2nd ed., pp. 387, 390 and 407, 408; Walters v.

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Lunt [1951] 2 All E.R. 645; Reg v. Morgan [1976] A.C. 182 and Professor Cross in 69 L.Q.R. (July 1953);
and Lord Edmund-Davies in Reg. v. Morgan [1976] A.C. 182.
Leak had the necessary mens rea. That is not disputed. The actus reus was complete as soon as the
intercourse was complete. But because Cogan was acquitted of rape there was no criminal offence at
that time and so Leak was not guilty of aiding and abetting: see R. v. D. [1969] 2 S.A.L.R. 591, 593; Smith
and Hogan, Criminal Law, 3rd ed., p. 106; Russell on Crime, 12th ed., vol. 1, p. 128, para. 1. Morris v.
Tolman [1923] 1 K.B. 166 is to the effect that where the principal in the first degree is acquitted, the
principal in the second degree can still be convicted. Actus reus can only be a crime if it is an absolute
crime and is not dependent on mens rea. In rape, both the elements, actus reus and mens rea, have to
be present. The present case is not an “innocent agent” case. The principal in the second degree here is
assumed to have the mens rea of the principal of the first degree. Leak was both accessory before the
fact and principal in the second degree. There was no essential mens rea on the part of Cogan, the
principal in the first degree: see Surujpaul v. The Queen [1958] 1 W.L.R. 1050. In Walters v. Lunt [1951] 2
All E.R. 645, parents who received a cycle stolen by their son were held not guilty of receiving as the son
was not criminally responsible and hence not guilty of larceny. If Leak, albeit he induced belief that his
wife was consenting, is merely charged with aiding and abetting, he is aiding and abetting an offence
which the defendant Cogan did not intend to commit, and which was not an offence.

Franz Muller for the Crown. One must bear in mind that since the Criminal Law Act 1967 came into force
one had to forget, to a certain extent, principals in the first and second degree. An aider and abettor is a
principal and he can be tried in that capacity. One asks, what is the actus reus and what is the mens rea?
The mens rea in every case must be particular to the case and to the offender whereas the actus reus
may be general. In rape cases the actus reus is the sexual intercourse with the female complainant
without her consent. That is the basis of Reg. v. Morgan [1976] A.C. 182. The question is, was the
complainant consenting? That is the actus reus. Anything beyond that is mens rea. The jury found Cogan
not guilty of the mens rea. “Aid, abet, counsel and procure” amount to “commit.” There remains as a
matter of fact an “aider and abettor” but as far as the law is concerned those words are abolished. In the
present day the aider and abettor does not have to depend on a principal. Where the Crown shows that
he “aids, abets, counsels and procures” he in fact “commits” the offence. Walters v. Lunt [1951] 2 All
E.R. 645 is distinguishable because there there were two acts, the theft and the aiding. One followed the
other. Here there was only one act.

Herrod Q.C. replied.

Cur. adv. vult.

June 9. LAWTON L.J. read the following judgment of the court. The defendants appeal against their
conviction for rape at the Teesside Crown Court on October 25, 1974. They were sentenced by Mocatta
J. as

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follows: Cogan to two years' imprisonment and Leak to seven years' imprisonment. Leak was also
sentenced on his pleas of guilty to five years' imprisonment for attempted buggery and to three years'
imprisonment for assault occasioning actual bodily harm. Those sentences were ordered to run
concurrently with that for rape. He applied for leave to appeal against all his sentences. This court
granted him leave and with the consent of his counsel the hearing of his application was treated as the
hearing of his appeal against sentence.

The indictment in the statement of offence charged Cogan with rape and Leak as “being aider and
abettor to the same offence.” The particulars of offence against Cogan were in common form. As against
Leak they were as follows: “at the same time and place did aid and abet counsel and procure John
Rodney Cogan to commit the said offence.”

The victim of the conduct which the prosecution submitted was rape by both defendants was Leak's
wife, a slightly built young woman in her early 20s. They had been married in 1969. There had been
many quarrels and some violence. On July 9, 1974, Leak came home in the evening under the influence
of alcohol. He asked his wife for money. She refused to give him any. Shortly afterwards he attacked her.
He knocked her down and while she was on the floor he kicked her many times. She sustained
numerous bruises on her back and hip. At his trial he pleaded guilty to this assault.

The next day Leak came home at about 6 p.m. with Cogan. Both had been drinking. Leak told his wife
that Cogan wanted to have sexual intercourse with her and that he, Leak, was going to see she did. She
was frightened of him and what he might do, as well she might have been. He made her go upstairs
where he took her clothes off and lowered her on to a bed. Cogan then came into the room. Leak asked
him twice whether he wanted sexual intercourse with her. On both occasions he said that he did not.
Leak then had sexual intercourse with her in the presence of Cogan. When he had finished, Leak again
asked Cogan if he wanted sexual intercourse with his wife. This time Cogan said he did. He asked Leak to
leave the room but he refused to do so. Cogan then had sexual intercourse with Mrs. Leak. Her husband
watched. While all this was going on for most of the time, if not all, Mrs. Leak was sobbing. She did not
struggle when Cogan was on top of her but she did try to turn away from him. When he had finished, he
left the room. Leak then had intercourse with her again and behaved in a revolting fashion to her. When
he had finished he joined Cogan and the pair of them left the house to renew their drinking. Mrs. Leak
dressed. She went to a neighbour's house and then to the police. The two defendants were arrested
about three-quarters of an hour later. Both made oral and written statements. Leak did not give
evidence.

Leak's statement amounted to a confession that he had procured Cogan to have sexual intercourse with
his wife. He admitted that while Cogan was having sexual intercourse with her she was “sobbing on and
off not all the time.” There was ample evidence from the terms of his statement that she had not
consented to Cogan having intercourse with her. The whole tenor of this statement was that he had
procured Cogan
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to do what he did in order to punish her for past misconduct. He intended that she should be raped and
that Cogan's body should provide the physical means to that end.

Cogan, in his written statement, admitted that he had had sexual intercourse with Mrs. Leak at Leak's
suggestion and that while he was on top of her she had been upset and had cried. At the trial Cogan
gave evidence that he thought Mrs. Leak had consented. The basis for his belief was what he had heard
from her husband about her. The drink he had had seems to have been a reason, if not the only one, for
mistaking her sobs and distress for consent.

The trial started on October 23, 1974. A few days before, namely, on (October 14, press publicity had
been given to the fact that the Court of Appeal in Reg. v. Morgan [1976] A.C. 182 had certified a point of
law of general public importance as to whether in rape the defendant can properly be convicted
notwithstanding that he in fact believed that the woman consented if such belief was not based on
reasonable grounds and had given leave to appeal to the House of Lords. In the course of his summing
up the trial judge stressed the need for the jury to be sure before convicting either of the defendants
that the wife had not consented to sexual intercourse. He then went on to direct them in relation to
Cogan's case in accordance with the decision of the Court of Appeal in Reg. v. Morgan. He prudently
decided to ask the jury to make a finding as to whether any belief in consent which Cogan may have had
was based upon reasonable grounds. The jury returned a verdict of guilty against Cogan thereby
showing that they were sure the wife had not consented. They went on to say that Cogan had believed
she was consenting but that he had had no reasonable grounds for such belief.

As to Leak he directed the jury that even if Cogan believed that the wife was consenting and had
reasonable grounds for such a belief they would still be entitled to find Leak guilty as charged.

Cogan's appeal against conviction was based on the ground that the decision of the House of Lords in
Reg. v. Morgan [1976] A.C. 182 applied. It did. There is nothing more to be said. It was for this reason
that we allowed the appeal and quashed his conviction.

Leak's appeal against conviction was based on the proposition that he could not be found guilty of aiding
and abetting Cogan to rape his wife if Cogan was acquitted of that offence as he was deemed in law to
have been when his conviction was quashed: see section 2 (3) of the Criminal Appeal Act 1968. Leak's
counsel, Mr. Herrod, conceded, however, that this proposition had some limitations. The law on this
topic lacks clarity as a perusal of some of the textbooks shows: see Smith and Hogan, Criminal Law, 3rd
ed. (1973), pp. 106–109; Glanville Williams, Criminal Law, 2nd ed. (1961), pp. 386–390, 406–408; Russell
on Crime, 12th ed. (1964), vol. 1, p. 128. We do not consider it appropriate to review the law generally
because, as was said by this court in Reg. v. Quick [1973] Q.B. 910, 923, when considering this kind of
problem:

“The facts of each case … have to be considered and in particular what is alleged to have been done by
way of aiding and abetting.”

The only case which Mr. Herrod submitted had a direct bearing upon

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the problem of Leak's guilt was Walters v. Lunt [1951] 2 All E.R. 645. In that case the respondents had
been charged, under section 33 (1) of the Larceny Act 1916, with receiving from a child aged seven
years, certain articles knowing them to have been stolen. In 1951, a child under eight years was deemed
in law to be incapable of committing a crime: it followed that at the time of receipt by the respondents
the articles had not been stolen and that the charge had not been proved. That case is very different
from this because here one fact is clear wife had been raped. Cogan had had sexual intercourse with her
without her consent. The fact that Cogan was innocent of rape because he believed that she was
consenting does not affect the position that she was raped.

Her ravishment had come about because Leak had wanted it to happen and had taken action to see that
it did by persuading Cogan to use his body as the instrument for the necessary physical act. In the
language of the law the act of sexual intercourse without the wife's consent was the actus reus: it had
been procured by Leak who had the appropriate mens rea, namely, his intention that Cogan should have
sexual intercourse with her without her consent. In our judgment it is irrelevant that the man whom
Leak had procured to do the physical act himself did not intend to have sexual intercourse with the wife
without her consent. Leak was using him as a means to procure a criminal purpose.

Before 1861 a case such as this, pleaded as it was in the indictment, might have presented a court with
problems arising from the old distinctions between principals and accessories in felony. Most of the old
law was swept away by section 8 of the Accessories and Abettors Act 1861 and what remained by
section 1 of the Criminal Law Act 1967. The modern law allowed Leak to be tried and punished as a
principal offender. In our judgment he could have been indicted as a principal offender. It would have
been no defence for him to submit that if Cogan was an “innocent” agent, he was necessarily in the old
terminology of the law a principal in the first degree, which was a legal impossibility as a man cannot
rape his own wife during cohabitation. The law no longer concerns itself with niceties of degrees in
participation in crime; but even if it did Leak would still be guilty. The reason a man cannot by his own
physical act rape his wife during cohabitation is because the law presumes consent from the marriage
ceremony: see Hale, Pleas of the Crown (1778), vol. 1, p. 629. There is no such presumption when a man
procures a drunken friend to do the physical act for him. Hale C.J. put this case in one sentence, at p.
629:

“… tho in marriage she hath given up her body to her husband, she is not to be by him prostituted to
another”: see loc. cit.

Had Leak been indicted as a principal offender, the case against him would have been clear beyond
argument. Should he be allowed to go free because he was charged with “being aider and abettor to the
same offence”? If we are right in our opinion that the wife had been raped (and no one outside a court
of law would say that she had not been) then the particulars of offence accurately stated what Leak had
done,

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namely, he had procured Cogan to commit the offence. This would suffice to uphold the conviction. We
would prefer, however, to uphold it on a wider basis. In our judgment convictions should not be upset
because of mere technicalities of pleading in an indictment. Leak knew what the case against him was
and the facts in support of that case were proved. But for the fact that the jury thought that Cogan in his
intoxicated condition might have mistaken the wife's sobs and distress for expressions of her consent,
no question of any kind would have arisen about the form of pleading. By his written statement Leak
virtually admitted what he had done. As Judge Chapman said in Reg. v. Humphreys [1965] 3 All E.R. 689,
692:

“It would be anomalous if a person who admitted to a substantial part in the perpetration of a
misdemeanour as aider and abettor could not be convicted on his own admission merely because the
person alleged to have been aided and abetted was not or could not be convicted.”

In the circumstances of this case it would be more than anomalous: it would be an affront to justice and
to the common sense of ordinary folk. It was for these reasons that we dismissed the appeal against
conviction.

The sentence passed upon Leak for his part in the rape was severe; but the circumstances were horrible.
We can see nothing wrong with that sentence. The assault upon the wife the previous day had been
brutal. The doctor found no less than 13 bruises in the middle and lower region on the left hand side of
her spine. There were other bruises on her back and multiple bruises on her left hip. These bruises were
consistent with punching and kicking. Men who use violence of this kind upon their wives must expect
severe sentences. The sentence of three years was not too severe.
The sentence of five years for attempted buggery raises a problem of principle. The prosecution's case
on the depositions was that over a period Leak had forced his wife to submit to buggery. The medical
evidence provided no support for the wife's story. In a written statement he admitted to one incident of
attempted buggery and said that this was by way of sexual experiment in the marriage bed. He alleged
that when his wife objected he desisted. On arraignment for buggery on October 3, 1974, he pleaded
not guilty. On October 23 he was again arraigned on the count of buggery. This time he pleaded not
guilty to buggery but guilty to attempted buggery. The prosecution accepted this plea. They did so on
the basis of the written statement Leak had made. We do not consider that this statement disclosed a
serious offence at all, certainly not one which merited a sentence of five years. We decided to quash
that sentence and substitute one of a day's detention. To that extent the appeal against sentence was
allowed.

Appeal against conviction dismissed.

June 9. The Court of Appeal (Lawton and James L.JJ. and Shaw J.) certified under section 33 (2) of the
Criminal Appeal Act 1968 the following point of law of general public importance, namely “Where a man
has

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intercourse with a woman without her consent, can a person who aids and abets that act knowing that
the woman does not consent be convicted of aiding and abetting rape notwithstanding that the man is
acquitted on the basis that he believed the woman was consenting when in fact she was not and is the
position the same where the aider and abettor is the woman's husband?”

Leave to appeal refused.

Solicitors: Registrar of Criminal Appeals; Director of Public Prosecutions .

P. R. K. M.

July 10, 1975. The Appeal Committee of the House of Lords (Lord Wilberforce, Lord Kilbrandon and Lord
Salmon) dismissed a petition by the defendant Leak for leave to appeal.
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